VP 3-30713.
Decided by Board July 19, 1954.
Evidence — Blood testing — Nonquota status under section 101 (a) (27) (A) of Immigration and Nationality Act.
(1) Where the petitioner claims citizenship through a United States citizen father and the evidence indicates incompatibility of blood between the petitioner and his alleged parents, the visa petition (for nonquota status on behalf of the petitioner's wife) will be denied because of the petitioner's failure to establish his claimed relationship to the person through whom he asserts citizenship.
(2) Although visa petition proceedings differ from exclusion and deportation proceedings, nevertheless blood testing evidence and the background material on which the conclusion was based should be placed in the record in form adequate to satisfy procedural requirements.
BEFORE THE BOARD
Discussion: The District Director for the Immigration and Naturalization Service at New York refused to approve a visa petition in behalf of the petitioner's wife on the ground that petitioner has failed to establish his claim to United States citizenship through his father, inasmuch as the blood-grouping tests made of himself and his alleged father demonstrate incompatibility of blood. The petitioner appeals from this decision.
A test of the blood of petitioner was performed by Dr. Leon Sussman, a recognized authority in New York in the field of blood testing. This test demonstrated that petitioner has O group blood. A blood test made at San Francisco by the United States Public Health Service hospital of the blood of the petitioner's alleged father demonstrates that the latter person had AB group blood. The adjudicator for the Immigration and Naturalization Service, relying upon a publication entitled Blood Grouping Tests in the New York Courts by Alexander S. Wiener, found that on the basis of these tests the petitioner cannot possibly be the son of the United States citizen through whom he claims his citizenship. This publication states that two parents, one of whom has AB blood and one of whom has O blood cannot have a child with either O or AB blood.
Three persons claiming to be brothers of petitioner and one person claiming to be a sister of petitioner, all claiming to be the sons and daughter of petitioner's alleged father, and accompanied by their alleged mother, all submitted to blood tests in Hong Kong on February 8, 1952. The alleged sons and daughter are all applicants for travel documents to enter the United States as citizens. That is why the blood grouping for the alleged mother is available to us at this time. The alleged mother has O blood and one of the alleged brothers also has O blood. As stated above, according to the accepted tables for the inheritance of blood properties, neither petitioner nor this brother with O blood can be the blood sons of these alleged parents.
The manner in which the evidence of the results of the blood tests and the conclusions to be drawn from those tests were placed in this record does not satisfy the standards we have required in deportation and exclusion cases. However, this is neither of those proceedings, being simply a petition for a privilege, and we will make a finding on the basis of this record as it now stands. However, if there are other proceedings to follow, in order to satisfy the evidentiary requirements, even of administrative proceedings, it will be necessary that the blood-testing evidence and the background material on which the conclusions are based be placed in the record in form adequate to satisfy procedural requirements.
In view of counsel's argument that petitioner and his father lived together for 15 years in China before petitioner entered this country in 1936, it should be mentioned that when petitioner first applied for admission into the United States in 1936 the board of special inquiry at San Francisco denied him admission on the ground that he had not satisfactorily established the claimed relationship to the alleged father. That finding was reversed by the Board of Review on May 18, 1937.
Counsel relies primarily in his brief and in his oral argument on the common law presumption of legitimacy. We have already held that that presumption has no place in immigration proceedings, where the issue is one, not of legitimacy but of identity ( Matter of L---- F---- F----, 0300-423162, February 25, 1953, 5 IN Dec. 149; Matter of D---- W---- O---- and D---- W---- H----, 0300-419637 and 0300-420204, May 14, 1954 (twice before the Board), 5 IN Dec. 351). Certainly such a presumption has no place in a visa petition proceeding, where the issuance of a visa is based upon proof of the claimed relationship.
Since petitioner cannot establish his relationship to the claimed United States citizen father, he cannot secure the issuance of a visa to his wife as the nonquota wife of a United States citizen.
Order: It is ordered that the appeal be dismissed.